HomeMy WebLinkAboutContracts & Agreements_147-2002_CCv0001.pdf SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement("Agreement")is entered into by and between Becky
Lynn Niehus("Niehus"), and City of Redlands("City")who are sometimes referred to herein as the
"Parties."
RECITALS
A. Niehus alleges that on February 3, 2000, she was a passenger in a 1987 Volkswagon
Cabriolet operated by Cross-Defendant Clydean Joan Bartlett on Highland Avenue and Ramona
Drive in the City of Redlands. The Niehus vehicle was traveling northbound on Ramona Drive
which was controlled by a stop sign. Ms. Bartlett failed to stop for the posted stop sign,entered the
intersection at Highland Avenue and was broadsided by a westbound vehicle operated by Kathryn
Matich resulting in injuries to Niehus. Niehus alleges that the City's tree trimming crew was
working at that intersection that day and had trucks parked on the east side of Ramona Drive
allegedly restricting the view of the stop sign and of cross traffic on Highland Avenue.This accident
is the subject of that certain legal action entitled Becky Lynn Niehus v. City of Redlands et. al.San
Bernardino Superior Court Case No. SCVSS 74425 (collectively, "the Lawsuit").
B. It is the intention of the Parties to resolve and settle their dispute and to discharge all
claims,demands,causes of action,obligations,damages and liabilities Niehus may have against the
City that arise from, or are related to, the incident which is the subject of the Lawsuit.
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C. This Agreement is a compromise of the claims asserted by Niehus and shall not be treated
as an admission of liability by any Party.
AGREEMENT
1. The Parties acknowledge that the Recitals are true and correct and incorporate the
Recitals into this Agreement.
2. The City shall pay to Niehus the sum of Twenty One Thousand Dollars($21,000.00)
within thirty(30)days from the date the City has executed this Agreement. The payment shall be
made by check payable to Becky Lynn Niehus, and the law offices of Vondra&Shields. Niehus
and her Attorney of Record agree that the check shall not be negotiated unless and until the City
notifies Niehus'Attorney of Record of the City's filing of the Dismissal referenced in paragraph 3,
below.
3. Niehus, through her Attorney of Record, shall execute a Dismissal With Prejudice
pursuant to Code of Civil Procedure section 581 of all lawsuits on file arising out of the incident
giving rise to the Lawsuit, and provide the Dismissal to the City within five (5)days of her receipt
of the payment described in paragraph 2, above. The City shall file the Dismissal and provide a
conformed copy to all Attorneys of Record.
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4. The Parties shall bear their own attorneys'fees and costs incurred in connection with
the Lawsuit.
5. Niehus, on behalf of herself and her respective attorneys, representatives, assigns,
heirs and successors-in-interest hereby releases and forever discharges the City, and its elected
officials, officers, employees, representatives, assigns and successors-in-interest from any and all
claims,causes of action,actions,damages,losses,demands,accounts,rights,liens,debts,liabilities,
obligations,disputes,controversies,payments,costs and attorneys'fees of every kind and character,
known or unknown, existing or contingent, latent or patent, regarding any matter arising from, or
related to, the incident which was the subject of the Lawsuit.
6. Niehus represents and warrants that she has the legal authority to settle any and all
causes of action and claims she may have against the City which relate or pertain to the Lawsuit.
By executing this Agreement,Niehus hereby releases and waives all claims or causes of action which
in any way relate to the Lawsuit. To the extent any person or entity should file, subsequent to the
execution of this Agreement, any claim or cause of action against the City arising out of, or which
is related to, the incident which is the subject of the Lawsuit, Niehus shall indemnify, defend and
hold the City harmless from any and all damages,including any attorneys'fees and costs that result
therefrom.
7, Niehus expressly waives the rights afforded her under Civil Code section 1542 which
provides that:
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A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor.
8. Niehus represents and warrants that she has received the advice of her Attorney of
Record with respect to the advisability of making the release provided for herein and the meaning
of Civil Code section 1542. Niehus is aware that she may hereafter discover claims or facts in
addition to or different from those she now knows or believes to be true with respect to the matters
related herein. Nevertheless, it is the intention of Niehus to fully, finally and forever settle and
release all such matters, and all claims related to those matters.
9. Niehus represents and warrant that she has not assigned or transferred, or purported
to assign or transfer, and shall not hereafter assign or transfer, any obligations,liabilities, demand,
claims,costs,expenses, liens, debts, controversies, damages, actions and causes of action released
pursuant to this Agreement. Niehus shall defend,indemnify and hold the City harmless against any
obligation, liability, demand, claim, cost, expense (including, but not limited to attorneys' fees
incurred), liens, debt,controversy, damage, action or cause of action based on, arising out of or in
connection with any such transfer or assignment or purported transfer or assignment.
10. Niehus acknowledges that she has read this Agreement; that she has had the
Agreement explained to her by counsel of her choice;that she is aware of the content and legal effect
of the Agreement;that she is acting on the advice of counsel of her choice;and that she is not relying
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on any representations made by any other party or any of the employees, agents,representatives,or
attorneys of any other party.
It. The Parties agree to execute and deliver any other instrument or document convenient
or necessary to carry out the terms of this Agreement.
12. This Agreement constitutes the entire agreement between the Parties as to the matters
contained herein. No modification of this Agreement shall be valid unless made in writing and
signed by the Parties. The Parties shall not be bound by any representation, warranty, promise or
statement unless it is specifically set forth in this Agreement.
13. This Agreement shall bind and inure to the benefit of the heirs, executors,
administrators, successors, and assigns of the Parties.
14. This Agreement has been jointly negotiated and drafted. The language of this
Agreement shall be construed as a whole according to its fair meaning and not strictly for or against
any of the Parties.
15. Each party executing this Agreement represents and warrants to the other signatories
that it has the authority to execute this Agreement on behalf of the person or entity for whom it is
signing this Agreement.
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16. This Agreement shall be governed by and construed in accordance with the laws of
the State of Califomia.
17. In the event any action is commenced to enforce or interpret the terms or conditions
of this Agreement the prevailing Party shall, in addition to costs and any other relief be entitled to
recover its reasonable attorneys" fees.
Dated:
Becky Lytq Nielm
CITY OF REDLANDS
Date September 3, 2002
Karl N. Haws,Mayor
Attest:
Lorrie j�oyzer, Ci 1 k
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